Pair v. State , 1396

CourtCourt of Special Appeals of Maryland
Citation33 A.3d 1024,202 Md.App. 617
Docket NumberSept. Term,No. 1396,2010.,1396
PartiesDaniel Joseph PAIR v. STATE of Maryland.
Decision Date22 December 2011

202 Md.App. 617
33 A.3d 1024

Daniel Joseph PAIR
STATE of Maryland.

No. 1396

Sept. Term


Court of Special Appeals of Maryland.

Dec. 22, 2011.

[33 A.3d 1026]

Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: JAMES R. EYLER, WATTS and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.


[202 Md.App. 621] The compelled merger of convictions to avoid multiple punishments for the same offense, or perhaps for the same criminal behavior, is by no means as simple a subject as it [202 Md.App. 622] might at first appear to be. The hydra has no less than three heads: 1) constitutional double jeopardy; 2) the rule of lenity as an aid to statutory construction; and 3) the essentially tetherless notion of fundamental fairness. These are no mere variations on a common theme. They are the subjects for widely differing inquiries. Fundamental fairness, especially, remains very much an enigma. All three are now before us.

The appellant, Daniel Joseph Pair, filed in the Circuit Court for Baltimore County on July 2, 2010, a Motion to Correct an Illegal Sentence pursuant to Maryland Rule of Procedure 4–345(a). The posited illegality was that three sentences had not been merged. On July 14, 2010, Judge Dana M. Levitz denied the motion. This appeal followed.

[33 A.3d 1027]

The Original Trial

The appellant was originally convicted by a Baltimore County jury, presided over by Judge Levitz, of 1) first-degree assault, 2) robbery, 3) false imprisonment, and 4) the unlawful taking of a motor vehicle. The victim of all of the crimes was the appellant's former fiancé, Allison Gilbert. Judge Levitz sentenced the appellant to a term of 25 years imprisonment for the first-degree assault, a consecutive term of 10 years for the robbery, a consecutive term of 5 years for the false imprisonment, and a concurrent term of 5 years for the unlawful taking of a motor vehicle.

The First Appeal

The appellant appealed his convictions to this Court, raising four separate contentions including the sufficiency of the evidence to support the convictions. One of the appellant's other contentions was that the conviction for the unlawful taking of a motor vehicle should have merged into the conviction for robbery, because the motor vehicle was one of several items of property taken in the course of the robbery.

In the case of Pair v. State, No. 2119, September Term, 2006, filed on July 28, 2009, this Court agreed with the appellant as to the merger of the conviction for the unauthorized taking of a motor vehicle. In all other respects, the 41–page [202 Md.App. 623] unpublished opinion by Judge Meredith affirmed the judgments of conviction.

Because the issue of merger is again being raised by the appellant, it is important to note precisely why this Court ruled as it did with respect to the merger of the motor vehicle theft charge. The rationale for merging theft into robbery has no bearing on the new merger issues now before us. After noting that “[t]he legislature set forth its intent regarding the merger of motor vehicle theft into theft,” Judge Meredith's opinion went on to explain why theft generally is deemed to merge into the greater inclusive robbery, which is, by definition, a compound theft.

Appellant is correct that the appellate courts of this State have held that under the rule of lenity, theft and robbery merge. See Spitzinger v. State, 340 Md. 114, 124–25 [665 A.2d 685] (1995) (“We ... have some doubts, in light of our prior cases and the history of common law robbery and common law larceny, as to whether the legislature intended to authorize successive or cumulative punishment for felony theft and robbery. Those doubts must be resolved in favor of the defendant, so that under the rule of lenity the sentences for robbery and felony theft should merge.”); Bellamy v. State, 119 Md.App. 296, 307 [705 A.2d 10] (1998) (relying on Spitzinger to conclude that convictions of felony theft and robbery with a deadly weapon arising out of a single event or incident should merge under the rule of lenity).

The Motion to Correct an Illegal Sentence

In his Rule 4–345(a) motion before Judge Levitz, the appellant pushed for additional mergers. Having failed before Judge Levitz, the appellant now pushes the same contentions before us:

1. The first-degree assault conviction merges into the robbery conviction;

2. Alternatively, the first-degree assault conviction merges into the false imprisonment conviction; and

[202 Md.App. 624] 3. False imprisonment and robbery merge under the Rule of Lenity and the principle of fundamental fairness.

Rule 4–345 and Merger

We are chagrined that the appellant, who successfully brought one merger issue before this Court in his first appeal, now raises three additional merger issues

[33 A.3d 1028]

for the first time, thus necessitating a second trip to the circuit court and a second trip to this Court when a single trip would fully have served the same purpose.1 Notwithstanding our chagrin, however, Maryland Rule 4–345 expressly permits such fragmentation under certain circumstances. A failure to merge a sentence is considered to be an “illegal sentence” within the contemplation of the rule. Britton v. State, 201 Md.App. 589, 30 A.3d 236 (2011); Ingram v. State, 179 Md.App. 485, 508–09, 947 A.2d 74 (2008); Campbell v. State, 65 Md.App. 498, 510–11, 501 A.2d 111 (1985); Randall Book Corp. v. State, 316 Md. 315, 319–22, 558 A.2d 715 (1989). The coverage of Rule 4–345, however, is not totally free of ambiguity.

Rule 4–345's exemption from the normal preservation requirements and the normal filing deadline is based upon the inherent “illegality” of the sentence enjoying open-ended and timeless review. In Britton v. State, supra, Chief Judge Krauser highlighted the significance of actual “illegality:”

[W]hen the trial court is required to merge convictions for sentencing purposes but, instead, imposes a separate sentence for each unmerged conviction, it commits reversible error. ... [S]uch an error implicates the illegality of imposing “multiple sentences ... for the same offense.” ... [T]he result is the imposition of a sentence “not permitted by law.

(Emphasis supplied).

We are dealing in this case not with one merger issue but with three distinct merger issues. It is conceivable that Rule [202 Md.App. 625] 4–345(a) might confer its special dispensation upon two of those merger issues but not upon the third. When a sentencing judge fails to merge multiple convictions for the “same offense” pursuant to the required evidence test of Blockburger v. United States, the unmerged sentence is unconstitutional, as a matter of law. That constitutes an “illegal sentence” within the contemplation of Rule 4–345(a). When a sentencing judge imposes multiple sentences where it is established, as a matter of law, that the Legislature intended that multiple sentences not be imposed, that legislatively prohibited sentence is also an “illegal sentence” within the contemplation of Rule 4–345(a). Both a violation of the Double Jeopardy Clause and a violation of the rule of lenity are matters that are decided as a matter of law.

By contrast, the newest and thus far little explored addition to the ranks of merger issues, to wit merger pursuant to fundamental fairness, may be a phenomenon with a critical difference. Such a merger decision would appear to be something that might frequently be heavily fact-driven and dependent on the particular circumstances of the particular case. This would seem to be the type of thing requiring a judgment call by the trial judge, the umpire on the field, with an immediate sense of the pulse of a trial. By its very nature, this could be a discretionary call and not something that can be reduced to legal algebra and decided as a matter of law. Could a failure to merge in such a discretionary context be said to be an inherently “illegal sentence?” If not, it would not qualify for Rule 4–345(a)'s procedural dispensations.

We are already far enough along in our present discussion, however, to assume, purely arguendo, that Rule 4–345(a) covers the merger arguments presently before us. At least we will make that assumption with respect to the first two merger issues.

[33 A.3d 1029]

Whether merger by virtue of fundamental fairness enjoys Rule 4–345(a)'s procedural dispensation is far more problematic.

The Many Faces of Assault

Assault is a protean crime. It frequently is a significant and autonomous crime in its own right. In this case, the first-degree [202 Md.App. 626] assault charge was the flagship count of this entire prosecution. The first-degree assault charge, for instance, carried the greatest maximum penalty of the three crimes for which the appellant was convicted. It was for the first-degree assault that Judge Levitz imposed the harshest penalty. Assault, on the other hand, can sometimes be simply nothing more than a constituent element in a crime such as robbery.

The question of whether a particular crime, such as the first-degree assault in the present case, is the centerpiece of the prosecution or a mere incident of some other crime is intensely fact-specific. There is no automatic or mechanistic answer as a matter of law. The answer, rather, depends upon the particular facts and circumstances of each individual case and can readily go in either direction.

Lamb v. State, 93 Md.App. 422, 613 A.2d 402 (1992) is illustrative. The issue in Lamb was whether the conviction for assault should have merged into the conviction for false imprisonment. Assault, of course, is one of the elements of false imprisonment. An assault that serves that instrumental function and nothing more is, therefore, a lesser included offense within the greater inclusive offense of false imprisonment. The two are the “same offense.” In the Lamb case, however, the assault did not serve...

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